Foxfall P/L v Hornsby SC

[2005] NSWLEC 427

Land and Environment Court

of New South Wales

CITATION:

Foxfall P/L v Hornsby SC [2005] NSWLEC 427

PARTIES:

APPLICANT
Foxfall Pty Limited

RESPONDENT
Hornsby Shire Council

FILE NUMBER(S):

11377 of 2004

CORAM:

Hoffman C

KEY ISSUES:

Appeal :- Deemed refusal of the demolition of four houses and the construction of ten two-storey dwellings in a senior living development - streetscape - loss of trees - heritage - privacy - shadows.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Senior Living State Environmental Planning Policy
Hornsby Local Environmental Plan 1994

DATES OF HEARING:

27/04/05-29/04/05 and 16/05/05

 
DATE OF JUDGMENT: 

07/26/2005

EX TEMPORE JUDGMENT DATE:

07/28/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr A. Galasso, barrister
Instructed by
Ms H. McFarlane, solicitor
of Minter Ellison

RESPONDENT
Mr I. Woodward, solicitor
of Storey and Gough

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

26 July 2005

11377 of 2004 Foxfall Pty Limited v Hornsby Shire Council

JUDGMENT

1 This is a Class 1, Appeal No. 11377 of 2004, between Foxfall Pty Limited and Hornsby Shire Council in regard to the deemed refusal of the demolition of four houses and the erection of ten two-storey dwellings in a seniors living development at Nos. 24 to 26 and 28 Myra Street, and Nos. 25 and 27 Highlands Avenue, Wahroonga. The properties also have frontage to Oleander Road.

2 There is an existing single large house on Nos. 26-28 and in regard to its demolition there was evidence in regard to its conservation value or not.

3 The proposal includes four detached dwellings fronting Myra Street. Numbers 1, 2 and 3 of these each have a separate driveway off Myra Street. Number 4 shares a driveway along the southern side boundary of the site also off Myra Street. That driveway serves unit Nos. 4, 5 and 6. Numbers 5 and 6 are semi-detached dwellings. Dwellings 7 and 8 front Oleander Road and are also semi-detached. Each has its own driveway off Oleander. Dwelling 9 is on the corner of Oleander and Highlands Avenue but has its driveway on Highlands. It is a detached dwelling as is unit 10, again having its own driveway.

4 All dwellings have garages that can accommodate two normal-sized car spaces or one car with room for disabled persons’ wheelchair access. Each dwelling has space in its driveway or outside its garage for two visitors’ cars, except for dwellings 4, 5 and 6 that have room only for one visitor car each. In the streets adjoining the site, there are no restrictions as to parking.

5 Each dwelling has on the ground floor a lounge, dining, family room, kitchen, laundry and one large bedroom with en-suite and a private courtyard off one of the living rooms. Each dwelling has on the top floor two more bedrooms, some with en-suites, an upstairs bathroom and a multi-purpose space as a combined study/sunroom.

6 The top floors are all designed as rooms in the roof accommodation so that the houses are not a full two-storeys. The upper floor is considerably smaller than the ground floor plan in each case.

7 Because the new dwellings are located fronting one street or another, there is a large communal backyard to which each dwelling has direct access. In the communal yard are to be landscaped gardens with a water feature. There is also to be a shared pavilion with a kitchenette and toilet and a spa and lap pool. Wheelchair accessible pathways provide access around the garden from each dwelling to each facility.

8 The site has a total area of 5,427 sq m with a gradual slope from Highlands down to Myra varying between 2 and 5 m over 110 m.

9 Number 30 Myra, is a detached house on the corner with Oleander adjacent Dwellings 1 & 7. Opposite the site in Oleander are 4 detached houses on 600 sq m lots created by dual occupancy subdivision. Opposite the site in Highlands and Myra Street are detached houses on lots of about 800 sq m but some older houses have much larger allotments and are set in spacious gardens.

10 Just to the north, on Myra Street also, with access off Highlands is a public school and some old brick and tile housing commission detached houses. Opposite the school is a medium density development. The area has many mature eucalypts and most houses have plenty of trees and shrubs with many non-native species.

11 The site has many large trees, most of which were proposed to be removed subject to extensive re-landscaping of the site with only native endemic species related to the indigenous Sydney Turpentine Ironbark Forest Community.

12 The amended statement of issues dated 15 March 2005 are:

Neighbourhood Amenity and Streetscape
1. The proposed development does not comply with Clause 31(a) of the State Environmental Planning Policy-Seniors Living ("SEPP 2004").

Particulars

a. The proposed development fails to recognise the desirable elements of the current location by retaining significant vegetation on and adjacent to the site and as a result does not make a positive contribution to the quality and identity to the area.

b. The façade presentation to Myra Street for dwellings 1, 2, 3 and 4 are repetitious, and contain minimal architectural or design features to break up the overall expanse of these buildings. There is lack of opportunity of views through the site to landscape features within it, in contrast to the existing character of the streetscape and the current character of the locality .

2. The proposed development does not comply with Clause 31(b) of SEPP 2004.


Particulars

The proposed development would not complement and sensitively harmonize with the heritage listed trees in Myra Street.


Tree Loss

3. The proposed development does not comply with Clause 31 (f) of SEPP 2004 in that is does not retain major existing trees on and adjacent to the site and would either directly remove or detrimentally impact the health of trees considered to be significant.

4. The proposed development will result in loss of significant trees and extensive vegetation on the site and detrimentally impact upon the health of trees on adjoining properties which will detrimentally impact upon the "leafy" character of the Wahroonga area.

5. The proposed landscape plan does not provide adequate replacement plantings to compensate for the loss of the trees and vegetation on the site.

Heritage
6. The proposed development would adversely impact upon the heritage listed trees in Myra Street and a building upon which an application has been made by the Council for an Interim Heritage Order.
Particulars

a. Heritage listed trees in Myra Street are of local significance.

b. Application has been made by the council to the Heritage Office for an Interim Heritage Order on the property at 26 -28 Myra Street, Wahroonga which has been nominated as a heritage item in a draft report in Council's Heritage Review-Stage 3 to determine whether it is to be incorporated into the Hornsby Shire Local Environmental Plan, 1994.

Visual and Acoustic Privacy
7. The proposed development would cause overlooking of adjoining properties, non compliant with Clause 32(a) of SEPP 2004.


Particulars

a. The first floor "library" of dwelling 6 will provide opportunity for direct overlooking of the swimming pool and private open space of No. 21 Highlands Avenue.

b. Dwelling No.8 is located adjacent to a shared pathway from which there is a direct line of sight into the lounge room at ground floor level.
Standards for Self Contained Dwellings

8. Insufficient detail has been provided to demonstrate the level of solar access within the development. (Clause 81(e) of SEPP 2004)

9. The proposal does not provide private open space in accordance with the standards for units 7, 8 and 9 (Clause 81 (f)(i) of SEPP 2004).
Private Car Accommodation
10. The car spaces are deficient for dwellings 4, 5 and 6 in terms of manoeuvrability and will obstruct the use of two visitor spaces.
Bushland Biodiversity and Landscaping
11. Whether the application, including the landscape plan, adequately retains the indigenous vegetation or provides suitable ameliorative measures to mitigate and compensate for the loss of remnant Sydney Turpentine Ironbark Forest, locally indigenous species and habitat for native fauna, including the endangered Gang-gang Cockatoo population.
12. Whether the overall loss of indigenous trees from the site will further reduce and fragment the canopy habitat in the local area.
General
13. Issues raised by objectors.

13 Appearing for the respondent were:

• Mr I Woodward, solicitor of Storey & Gough,
• Mr N McCarry, senior town planner of the council,
• Mr D Hoye, arborist and horticulturist, tree management co-ordinator of the council,
• Ms I J Cattley, resident objector of No. 7-9 Myra Street,
• Mr B McRae, resident objector of No. 8 Highlands Avenue
• Mrs T and Mr R Haynes, resident objectors of No. 6 Highlands Avenue,
• Mrs C and Mr S Kirby, resident objectors of No. 24 Highlands Avenue,
• Mrs T G and B Callahan, resident objectors of No. 23 Highlands Avenue.
• The heritage report by Mr R Moore, architect and conservation consultant was not admitted to evidence.

14 Appearing for the applicant were:

• Mr A Galasso, barrister instructed by Ms H Macfarlane of Minter Ellison,
  
• Mr I Glendinning, town planner.

15 There were also reports from other experts who were not required for cross-examination and as a result their evidence was accepted. They were:

• Dr S Ambrose, ecologist in respect of the flora and fauna and biodiversity and endangered species issues,
  
• Cardno MBK on traffic consultants,
  
• Morris Goding on disabled accessibility consultants,
  
• Mr R Staas, heritage architect,
  
• Mr A R Gardner, design architect for the proposal,
  
• Cadno MBK on drainage and recycling consultants,
  
• Ms M Howden, arborist, horticulturist and landscape architect,
  
• Pittendrigh Shinkfield & Bruce, landscape architects on the re-vegetation maintenance program,
  
• Mr J and Mrs M Cameron, resident supporters of No. 28 Myra Street,
  
• P S Edwards, resident supporter of No. 34A Park Avenue,
  
• Mr Ferguson, resident supporter of No. 54 Woonona Avenue, and
  
• Mr G A Richards, resident supporter of No. 19 Myra Street.
  

16 In addition, Ms J Hill, chartered architect, heritage expert and urban designer was agreed by the parties to be appointed as a Court-expert.

17 In addition to these attendances, there were some 94 persons at the on-site component of the hearing. According to the signed attendance sheet in exhibit 11, 27 persons supported the proposal and 67 persons opposed it. The major objections could be summarised as:

(a) changes to the character of the area due to streetscape impacts and the medium density nature of the proposal versus the low density existing character,

(b) the loss of almost all the existing trees on the site,

(c) privacy and overshadowing concerns for the Callaghans who live next door to the proposal on Highlands Avenue in No. 23,

(d) the loss of one house occupying two allotments at No. 26-28 Myra Street, said to have heritage value but it is not a listed heritage item, and

(e) proximity to two listed heritage houses, one at No. 7 to 9 Myra Street and another at No. 9 Highlands Avenue.

18 Going first to one of the issues on which most oral evidence centred, the loss of trees. Mr Hoye, the council’s expert agreed most of the trees had severe storm damage from the early 1990s and others had infestations that justified their removal. Mr Hoye concluded his report saying

“in consideration of the amended plans, I am of the view that they are sufficient, provided the 6 m setback to tree No. 82 is obtained, the driveway is moved from the tree No. 93 and pier and beam construction is used within the setback of tree 46. There is still concern for the row of Cyprus pines located on the adjoining property at No. 30 Myra Street as no attempt has been shown to limit the impact on these trees.”

19 During the hearing, the applicant proposed piered footings and a cantilevered concrete slab to the courtyard of unit 7 as shown in exhibit T adjacent to the row of Cyprus pines to protect them. Mr Hoye said that would probably save the pines.

20 He said there were about 110 trees on the site and about 75 of those would go to enable construction of the dwellings. After assessing the level changes and landscape works on the site, he concluded nearly all the trees would go except for those that were specifically protected.

21 Due to the dramatic change that would create in the tree cover of Myra, Oleander and Highlands, he said he would prefer to see some trees kept for a number of years until the new landscaping had time to establish and gain some height. Mr Hoye maintained his position that in the long term, most of the existing trees should be removed and replaced with the landscaping proposed.

22 Due to the concern of the objectors, I took considerable time to see all the trees and hear on-site evidence from Mr Hoye and Ms Howden. In that evidence, I heard there were only three trees of the 110 that were classified as significant under Hornsby council’s tree assessment process. They were trees Nos. 93, 82 and 46 on exhibit B.

23 Tree 46 on the corner of Highlands and Oleander is a huge red gum and it is to be kept by using piered footings on unit 9.

24 Tree 82 is actually in Mr Callaghan’s backyard not far off the boundary and it can be kept by using piered footings on unit 6. A lilly-pilly tree No. 35 is just inside the subject property near tree 82 and provides screening canopy at low level between the proposal and Mr Callaghan. It is so close to unit 6 however that even piered footings could not save it.

25 Tree 93 is actually inside No. 22 Myra Street near the front boundary. The driveway of the proposal to units 4, 5 and 6 is too close and would affect its roots. The applicant moved the driveway to reduce affectation so the tree could be retained.

26 Also during the on-site evidence, tree 28, an English oak was seen as highly desirable for retention even though it is not a native specie that would add to the Sydney Turpentine and Ironbark community of the locality. Exhibit U showed an amendment to excavation and landscaped pathways that would enable it to be kept.

27 Tree 86 another large Blackbutt on the boundary near unit 6 could also be saved by recessing the south-east corner of unit 6 as now shown on the plans.

28 Ms Howden said of the 62 trees to be removed in her opinion, 27 trees were either dead or senescent or declared noxious weeds or exempt from council’s tree preservation order, or in a poor or hazardous condition. In her assessment there were 7 major trees to be removed on the site that had such high canopy that they could be seen from some distance away from the site and contributed to the heavily treed character of the locality. Although their loss would have a temporary visual impact, she proposed the planting of 30 trees that would grow to be as large.

29 Importantly, the new trees were located along street boundaries and within the large rear open space of the proposal, away from buildings so that they could grow to maturity without the need for pruning. Also, they were all to be local endemic trees that would add to the existing remnant native forest species.

30 The respondent took me along Myra Street past the intersection of Oleander to look back towards the site. There was a cluster of high tree canopies existing that balance similar canopies on the opposite side of Myra Street. It was put the existing trees were an important streetscape component. These trees, Nos. 21, 22, 23, 24, 18, 19 and 106 were on site, Nos. 104, 103, 102 and 101 are on the footpath. Most of them are proposed for removal.

31 The applicant put that No. 21 was a Mahogany in poor health, 22 a Blackbutt, 23 a Mahogany, 24 was dead, 25 and 106 were Ptosterums, either heavily pruned and mis-shapen or in poor condition. Eighteen and 19 were senescent Mahoganys with epicormic growth. All the larger trees had broken branches and had become mis-shapen due mainly to the big storms of the early-1990s.

32 Trees 102 and 104 are Brushboxes and are to be kept on the footpath. These are part of the designated heritage items. Trees 101 and 103 are Angophoras and are in poor condition and in the location of new driveways to units 1 and 3, so while they provided some greenery to the streetscape they were not quality trees. Their replacements would make a much better contribution as they grew.

33 Mr Glendinning said part of the development application is to have the existing multiple overhead power lines gathered into a bunch. This had been agreed to by the electricity authority by letter in evidence. Currently, the multiple power lines necessitated extensive pruning of the street trees. The bunching of the power line would enable them to grow much higher than currently.

34 The Angophoras that were to be removed would be replaced with Brushboxes, the same as the heritage item trees and they could all grow taller than the current pruning allowed.

35 Mr Hoye agreed with these assessments.

36 The respondent took me to Highlands Avenue where there is a group of mature trees near tree 46, the latter being a tree to be retained. Trees 47, 48, 49, 51 and 52 were large, tree 49 being about 20 m tall. They were very close to or inside unit 9 and were all proposed for removal. The experts agreed trees 51 and 52 were storm damaged with termite infestation and epicormic growth. Mr Hoye said individually the trees in the group were not significant. It was their grouping that made them visually impressive.

37 The applicant noted the building had the council’s required setback from the street and the tree canopies were such that even the existing house owner could ask for their removal due to danger from falling limbs. Evidence from the residents on site indicated that whenever there were high wind storms in the locality, branches came down off the various tall trees.

38 Elsewhere on the Highlands frontage, there were two Robinias, trees Nos. 56 and 59. They were also storm damaged, old and stressed. They are not a preferred specie in residential areas, Mr Hoye said, as they are prone to drop limbs. Two other Turpentines, trees 57 and 58, are also storm-damaged, in decline and recommended for removal.

39 A palm tree being tree 60, is to be retained along with another Turpentine, tree No. 55, that Mr Hoye said was possible to retain if the driveways to units 9 and 10 were concrete slabs supported on piles to minimise damage to roots.

40 The respondent put that the controls on design required an architect to locate buildings to preserve important vegetation. It did not appear to have occurred on this occasion.

41 Also, the respondent put that Mr Hoye had indicated his assessment was done on two bases. The first was as a development application assessment officer wherein any trees within three metres of an existing building or an approved proposal were exempt from a tree preservation order. The second base was as a tree preservation officer, wherein he said many of the trees would be refused a permit for removal, but would be required to have pruning or treatment for infestations or structural faults that made them prone to falling limbs, etc.

42 Mr Callaghan made the point that the garden at Nos. 26-28 Myra Street had once been substantial and was indeed a compliment to the setting of the house which he considered to have heritage value. It contained as well as a number of mature eucalypts, a number of exotic trees, one of which was the English oak that was to be preserved.

43 Without going through every tree in the 110, I will say that enough was demonstrated on site for me to conclude most of the trees proposed for removal were justified to my satisfaction, provided re-planting as proposed was undertaken. Requiring some trees to be kept for up to 15 years to enable new trees to grow to a substantial height is not very practical in this case. The main trees one might keep along the Myra Street and Highlands Avenue frontage were either faulty or too close to proposed buildings. Some other healthy trees that one might keep were within the footprints of mainly units 4 and 6.

44 Dr S Ambrose whose evidence was accepted by both parties, concluded that the site is not part of a wildlife corridor and the existing site contains poor remnants of endemic forest species. Removal of the existing trees will be insignificant in his opinion to the foraging habitat of the local population of the endangered Gang Gang cockatoo. The removal of the existing exotic trees on the site and the revegetation with native endemic species will improve the composition of the local area Sydney Turpentine Ironbark forest community.

45 Turning to the overall design of the proposal, Mr Glendinning put that the council’s subdivision controls would enable this site to be subdivided into ten lots of 500 sq m each and that was practical due to the 3 street frontages. The actual calculation came to 10.4 houses so the proposal had more than 500 sq m per dwelling. The maximum permitted Floor Space Ratio is 0.5:1 under the Seniors Living State Environmental Planning Policy, that is the applicable instrument governing the proposal. The development is 0.46:1 so overall the density is less than permitted.

46 If the site was subdivided into ten lots that would come under the Residential (a) zone of the Hornsby Local Environmental Plan 1994 that permitted a maximum of Floor Space Ratio of 0.4:1. That density is only a little less than the proposal.

47 A further consideration, the applicant said, was the Hornsby local environmental plan allowed medium density development and if strata titled, it would permit one dwelling per 350 sq m of site area giving 15 houses on the subject property.

48 In any case, the Seniors Living State Environmental Planning Policy intended developments such as this to be medium density, Mr Glendinning said, so that any design would have elements that appeared more closely developed than the existing detached houses on large lots. The proposal of 10 dwellings instead of 15, would be 33% less dense than permitted.

49 My attention was drawn by the applicant’s to the houses in Oleander Street. Those on the north side had been developed under previous legislation for dual occupancies and represented a similar density to that permitted under the council’s current Local Environmental Plan on the subject site. Mr Glendinning put that they represented more closely the expected future character of the area than the existing large lots with detached houses. The expectations of the local residents were therefore not supported by the Hornsby council’s legislation.

50 In the design of the proposal, it had emulated the street front setbacks of its neighbours and retained the principal open space in the traditional backyard location, so the placement of buildings was sympathetic to the existing houses. The proposal is for single-storey dwellings with rooms in the roof using dormer windows. That design is sympathetic to the existing one and two storey houses because the upper floors of the proposal are smaller than the ground floor and contained within the pitched roofs giving a single storey impression.

51 The placement of the buildings meant that the only two neighbours that might have been affected, No. 30 Myra and Mr Callaghan at No. 23 Highlands, had backyards that adjoined the proposed landscaped principal open space of the proposal.

52 Number 21 Highlands, next to the south-east corner of the site, had dense vegetation at the rear which obscured dwellings 6, which would be in any case downhill of that property. The proposal had also converted the original dormer windows to be highlight frosted glass windows so that no overlooking from the upper storey into the swimming pool in No. 21 would be possible.

53 Number 22, Myra, on the south boundary of the site, had its own driveway and garage alongside the site. The site in turn had dense boundary vegetation to be retained and a 6 m wide driveway to units 4, 5 and 6. The neighbours separation and suburban privacy would be retained and the shadow diagrams showed no unacceptable impact on No. 22.

54 Mr Callaghan had particular concerns on privacy and shadows. His house is designed with a single storey section at the front that has a north-side veranda facing unit 10. At the rear, Mr Callaghan has a two-storey part of his house. The north side within Mr Callaghan’s boundary has tall vegetation. He was concerned that unit 10 would block out even more sun than his own vegetation. He enjoyed the sun on the veranda and was anxious that it not be lost. The shadow diagram showed at 9am on June 21st, his side veranda was in full sun and whilst there might be a short period between 9am and noon as the sun moved, that parts of his veranda would have some shade, at noon and afterwards his veranda was in full sun and would remain that way until his own two-storey house shaded it. At other times of the year, the shadow impact would be less.

55 Unit 10 was not as long as Mr Callaghan’s house. The west-facing studio sunroom of unit 10 had a dormer window with a small balcony at the first floor level. It would be adjacent to a second storey north-facing bedroom window of Mr Callaghan’s. A privacy screen is proposed on the side of the balcony to prevent persons on it looking at the bedroom window.

56 Unit 6 that had some dormer windows that may also have given a view into the Callaghan’s backyard had been made a highlight and frosted windows to prevent overlooking. I concluded the impacts on Mr Callaghan’s house were minimal and acceptable and certainly far less than a full two-storey house might have on his northern side boundary if the subject property was subdivided into ten lots.

57 Turning to Nos. 26-28 Myra Street, it is a large house built about 1935. It was Mr Callaghan’s family home until sold in 1974. It was built on a subdivision of the site of No. 9 Highlands Avenue, one of the heritage items, which is another large house built in about 1891. The original allotment of that house, however was so large that Nos. 26-28 and No. 9 are far apart, separated by several other smaller houses on other smaller subdivided lots, and being on separate streets have no visual connection. Indeed, the original allotment and gardens even at Nos. 26-28 extended to Oleander Street and Highlands Avenue but those areas had been subdivided and sold off.

58 Ms J Hill, heritage architect, had been agreed by both parties to be appointed. She had reviewed the house and land in regard to the council’s having decided to seek a listing of it as a heritage item. The Brushbox street trees in Myra Street are already listed heritage items and they are not being affected by the proposal except that the proposed bunching of the large number of power lines above them will in future enable heavy pruning by the electricity authority to be reduced so they can grow higher.

59 Returning to the house, Ms Hill reviewed the Noel Bell Ridley Smith report by Mr Staas which also was not subject to cross-examination. It had considered the house was not worthy of listing. The New South Wales Heritage Office had concluded it was not worthy of an interim conservation order and was not of State heritage significance although it may be considered for local significance.

60 The house is a bungalow style, built of manganese dark bricks and a tile roof. There is a port cochere on the southern side adjoining the main entry. Facing towards the street are bay windows to the main rooms but no French doors or a means to enter the garden except via the main entry or the back door.

61 Windows are quite small even for the period of construction making the interior quite dark. The central hallway has no windows and is very dark. The planning of the house is poor. For instance, the kitchen is at quite some distance from the living and dining rooms. The Inter-War suburban bungalow style of the house is one that was no longer fashionable even when it was built.

62 Mr Callaghan’s oral cultural history of the house is that it was used in World War II as a recreation centre by privates and non-commissioned officers who were in training at the military field park regiment camp that encircled the house at that time. The original owner, Mr Callaghan’s father, was the son of a Dr Callaghan who was a local identity at the town of Windsor and had been at one time president of the Hawkesbury horse racing club. There was a connection of the house with author and playwright Doris Eggerton Jones Callaghan who was the mother of Mr Callaghan at No. 23 Highlands.

63 Ms Hill had found that the books and plays for which the author was known had been written before No. 26-28 was built so it did not have a role in their creation. Ms Hill did not believe the house had sufficient significance in the local history of itself or by association to warrant conservation for social, cultural or spiritual reasons. It did not represent any new or innovative technology in its construction although it was well built and in good condition.

64 Ms Hill checked the 800 listed items in the Hornsby Shire heritage inventory and investigated the locality of the site and found 15 to 20 similar or better houses that are examples of the same period and style. She and the Noel Bell Ridley Smith report found the house at Nos. 26-28 to be of unexceptional quality aesthetically.

65 As mentioned above, it was not a rare example either, taken in a wider context. It was only unusual in the immediate vicinity as a large Late Inter-War bungalow design in a garden setting. Ms Hill said the Tropman & Tropman report listed a large number of representative examples of various ages and styles as “good” examples and ones that she considered merely typical examples, as “rare”. She held the opinion as did Mr Staas that the Tropman & Tropman report had used lower thresholds for conservation values than are normally used.

66 The other heritage item nearby at No. 79 Myra Street was on the opposite side of the road and south of the site by 50 to 100 m. It was slightly below the street level behind a hedge and gardens in its large front setback. It had been built circa 1895 and is listed as regionally significant on the State inventory.

67 It was evident that this heritage listed house, and the other No. 9 Highlands, together with a few other large allotments with their large frontages and extensive vegetation added a touch of “times gone by” amongst the other smaller lots and smaller houses in Myra, Oleander and Highlands Avenue.

68 North past Oleander on Myra was the local school, some detached Housing Commission houses and some medium density development. The objections of the nearby residents could be summarised as mainly streetscape concerns.

69 There were some concern about busy traffic in Myra Street and the four driveways proposed but the traffic engineers were content that the proposal would have no unacceptable impacts on traffic or pedestrian safety.

70 The evidence was that the design complied with needs for disabled persons’ accessibility and there was public transport availability within 400 m of the site giving access to the necessary services and facilities.

71 Mr McCarry, the council town planner, made particular mention of units 1, 2, 3 and 4 on the Myra Street frontage. They are designed as detached houses but with only a one-metre gap between. And, in that gap are the garbage bins giving little room for vegetation. There were no windows in the side walls except for a recessed courtyard in each house. The need to space the dwellings apart for light and ventilation was not a concern. The unacceptable impact is the fact that units 1, 2 and 3 were designed as identical houses, and that they, with unit 4, would appear as a continuous building 52 m long. Mr McCarry said that is unprecedented in the streetscape and would not meet the Seniors’ Living State Environmental Planning Policy requirement in cl 31(a) of any proposal making a positive contribution to the streetscape character of the locality in which it was going to be built.

72 Mr Glendinning felt that the front setback matching existing houses and the extensive trees and vegetation would make the necessary contribution to the streetscape, and, the articulation of the buildings and their single storey with rooms in the roof style second storey would prevent the institutional look that Mr McCarry and the residents feared.

73 The applicant offered optional architectural treatments to units 1, 2 and 3 to give them a varied appearance.

74 They are proposed to be in corrugated iron roofs and fake masonry walls. Mr McCarry and the residents saw the materials as uncontributory in an area predominated by brick walls and terra cotta tiled roofs. The applicant volunteered to change to those materials.

75 Mr McCarry held the opinion that even with those changes, the close spacing of the units and the basic shapes of units 1, 2 and 3 being unaltered would retain the appearance of a continuous building of 52 m.

76 I must say I agree with Mr McCarry. The character of Myra Street is detached houses with vegetation between, even if it was only tall shrubs. That is what gives the impression of houses in a garden setting. The generous front setbacks and trees and shrubs within the front setback add to the salubrious impression.

77 Mr McCarry said 5 m between houses was about the average to give that impression, not counting the grand old houses on their large lots. As it happened, the deletion of one of units 1, 2 or 3 would give the ability to have the 5 m separation. The applicant when asked made no offer to make that change. It is my opinion, however, that in order to be satisfied with cl 31(a) of the Seniors’ Living State Environmental Planning Policy and cl 30, that it is necessary to separate units 1, 2, 3 and 4 including the changes to the construction materials.

78 Turning to the other streets, Oleander Street has a different character. The existing houses on the south side of the street have a more medium-density appearance. The proposal with units 7, 8 and 9 maintains a 7 m front setback similar to those opposite and has one double garage in a recessed driveway 6 m wide and 8 m deep that gives a visual break between units 7 and 8. The single storey garage to unit 8, although only set back, behind the verandah, does with the quite different design and articulation between units, enable a satisfactory streetscape to occur. Unit 9 has its driveway off Highlands Avenue and presents as a detached dwelling.

79 The front setbacks of units 7, 8 and 9 to Oleander Street, are proposed to be used as north-facing courtyards off living rooms. Although the respondent’s evidence opposes this, I have formed the opinion that the low street boundary fence and layered hedges with the trees proposed will give adequate privacy and separation between the units, and within the Oleander Street setting, that will be satisfactory.

80 In Highlands Avenue, the front setbacks are designed as front gardens not to be used as private recreation spaces. The design of units 9 and 10 are highly articulated and given the change of building materials should fit comfortably into the Highlands Avenue existing setting at this end of the street. At the southern end of Highlands Avenue, most houses have larger setbacks and allotments. At the north end there are more narrow lots with some houses having lesser front setbacks.

81 One must keep in mind the council’s statutes and controls permitting medium density, so the future character of the locality is obviously a mix of medium density and older detached houses on large lots. This development is not anti-pathetic to that expectation.

82 Overall, the proposal has achieved quite a high standard of accommodation for seniors’ living and minimal actual impacts on the neighbours, and with the amendments I propose, it is such that refusal is not justified. I proposed a deferred commencement consent to enable amended plans to be prepared. The applicant submitted exhibit W with other amendments to the plans outlined in this judgment. The respondent’s conditions in exhibit 12 were acceptable except for condition 67 requiring a bond for performance of on-site landscaping. I accept the applicant’s submission that a condition requiring performance is sufficient to enable enforcement if needed. The respondent altered the condition to require a maintenance contract as in exhibit Y.

83 Condition 64 is retained as a requirement to protect trees 86 and 93 during construction, and amendments to unit 6 to enable that are in the amended plans.

84 Therefore, the orders of the Court are:

1. The appeal is upheld.

2. Deferred commencement consent is granted for the demolition of 4 houses at Nos. 24-28 Myra Street and Nos. 25-27 Highlands Avenue, Wahroonga, and the erection of 5 detached and 4 semi-detached dwellings under State Environmental Planning Policy (Seniors Living) 2004, all as amended by and built in accordance with the conditions in Annexure A hereto.

3. The exhibits are returned to the parties except Exhibits 3, 6, 11, 12, B, C, D, R, S, T, U, V, W, X and Y.

4. No order as to costs.

__________________________
K G Hoffman
Commissioner of the Court
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